The Constitutional Court (TC) has granted the protection requested by the Colectivo Cuadernos del Sureste Association and has declared the nullity of the Supreme Court's ruling, of September 24, 2009, which condemned the magazine and its spokesperson, Jorge Jiménez Marsá, for interference with the honor of the lawyer and former secretary of Arrecife, Felipe Fernández Camero, for the article "The Secretary: Fifth Power", included in a dossier entitled "Corruption". The Constitutional Court, in a ruling of December 9, 2013, considers that Cuadernos del Sureste's fundamental right to freedom of expression has been violated.
The Constitutional Court points out that the qualification of Fernández Camero as "corrupt", which is ultimately "what is deduced from the article published" by Cuadernos del Sureste, constitutes "a value judgment, so the right concerned is the right to freedom of expression". In this sense, it recalls that the article on Fernández Camero was published in an issue dedicated to "reflection on the excessive tourist growth on the island of Lanzarote and its environmental consequences".
In this article, which is inserted with others in a dossier entitled "Corruption", various private activities of Fernández Camero are analyzed, which are considered incompatible with the public functions he performs as secretary of the Arrecife City Council. In it, it was stated, among other things, that it is "healthy for the debate that this man begins to be named, not prejudged or judged, simply named as one more act of the evolution of this island, although clearly and voluntarily aligned with its involution".
The Constitutional Court also recalls that Jorge Jiménez Marsá, as spokesperson for this group, in a press conference and in an interview in La Voz de Lanzarote, withdrew the ideas and opinions expressed in the article and linked "directly to Fernández Camero with ‘strange’ or ‘corrupt’ plots".
The Constitutional Court considers that this article aimed at "a matter of public relevance, as it addresses a matter of general interest such as the growth model of the island of Lanzarote, especially in some municipalities". In that context, the situation of the secretary of the Arrecife City Council was denounced, considering that in some cases his professional activity as a lawyer was "incompatible" with the exercise of his public functions.
"It was not intended as pure insult or humiliation"
The Court points out that the use of the term "corruption" or the "suggestion that Fernández could have some kind of relationship with activities of that nature, in that context was not intended as pure insult or humiliation, but what was intended was to denounce the difficulty of reconciling public and private interests in the urban planning field".
Therefore, the Constitutional Court considers that the use of the term corruption "cannot be considered unnecessary for the information transmitted". "The information, moreover, was of public relevance, as it referred to a matter of general interest and the actions of a public official, circumstances in which, as has been pointed out, the exercise of freedom of expression reaches its maximum level of justifying effectiveness against the right to honor".
For all these reasons, the Constitutional Court grants the protection requested by Cuadernos del Sureste, because the value judgments issued in the article "The Secretary: The Fifth Power" and the subsequent statements by Jorge Jiménez Marsá were made "in the legitimate exercise of the fundamental right to freedom of expression".
Judicial journey
Felipe Fernández Camero filed a lawsuit in 2003 in the Court of First Instance of Arrecife against Carlota Gutiérrez, Jorge Jiménez Marsá and the Association "Colectivo Cuadernos del Sureste" for illegitimate interference with his right to honor as a result of the publication of an article entitled "The Secretary: Fifth Power".
Camero requested precautionary measures consisting of the seizure of the copies corresponding to the magazine Cuadernos del Sureste and the order to prohibit a new publication and dissemination by any means or support. Initially, the Court agreed to the measure, in a controversial decision that was later annulled by the Court itself on May 5, 2003.
The Court of First Instance Number 2 of Arrecife issued a judgment in 2003, partially upholding Fernández Camero's claim, considering that there had been an illegitimate interference with the plaintiff's right to honor. The ruling was appealed and the fourth section of the Provincial Court of Las Palmas fully upheld the appeal filed by Cuadernos del Sureste, fully dismissing Fernández Camero's claim.
Against this ruling, an appeal was filed in the Supreme Court, which confirmed the pronouncement of the ruling issued in the first instance. The Supreme Court considered that there had been "a defamation and offense of the plaintiff, which reaches the category of attack on honor, since the imputation of corruption implies it".
However, now the Constitutional Court has once again sided with Cuadernos del Sureste, and has annulled the Supreme Court's ruling, considering that the qualification of Fernández Camero as "corrupt" cannot be considered an illegitimate interference with his right to honor.
